WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20100170
OBJECTION BY: Worker
EMPLOYER: Participating
REPRESENTATIVES: Worker, Employer
HEARING DATE: March 31, 2010
ATTENDEES: Worker, Worker Representative, Employer, Employer Representative, Employer Resource person
ISSUES
The worker requests:
Recognition that his recurrent lower back problems of July 21, 2008 are accident-related under this claim.
The payment of associated benefits for health care from July 23, 2008.
HOW THE ISSUES ARISE
This claim recognizes a workplace accident August 22, 2007, in which the worker received injuries to his neck, upper back, right hand, right wrist and lower back. The attending health care practitioners diagnosed soft tissue injuries of these areas; directed a conservative treatment program and approved a return to accommodated work duties.
The employer, a regional hydro utility company provided the accommodated work duties; the worker continued in the workplace and returned to his pre-accident work duties as an electrical lineman. He experienced recurrent lower back problems as of July 22, 2008; these problems required accommodated work duties and he requested recognition his continuing situation under this claim.
The operating area carried out enquiries and gathered relevant information from the workplace parties. It noted that the health care practitioners directed the most active treatment to the worker's right wrist injury after workplace accident on August 22, 2007. He had experienced minor lower back symptoms but these had not required any accommodations. Furthermore, investigations had identified degenerative disc disease of the lower spine.
The operating area concluded that the worker's further lower back problems of July 21, 2008 that required health care and accommodation were not accident-related. It advised the workplace parties of this decision through the claims adjudicator letter of August 18, 2008. The worker's representative objected this decision on September 29, 2008; he submitted an objection form on February 22, 2009 and the operating area referred the issues to the Appeals Branch on March 23, 2009.
AUTHORITY
Operational Policy Manual Documents:
11-01-05 Determining Maximum Medical Recovery (MMR)
11-01-15 Aggravation Basis
15-03-01 Recurrences
17-01-02 Entitlement to Health Care
ASSESSMENT OF THE EVIDENCE
The worker provided testimony at the hearing about:
Being an employee of the employer, a regional hydro service distributor for 31 years in the capacity of electrician.
Servicing underground and overhead electrical installations in this capacity in teams of two, three or more.
How these work duties required him to work primarily outdoors at all times of the year.
Injuring neck, upper back, right hand, right wrist and left side lower back in a workplace accident on August 22, 2007.
How this occurred when he was spilled from the work bucket on the lift apparatus of his truck, when raising it towards a transmission line that required servicing.
The spill being caused by malfunction of the work bucket which resulted in him falling approximately six feet onto the metal steps of the truck.
A co-worker witnessing the fall; reporting the matter to his supervisor immediately and receiving emergency health care at a local clinic.
The primary health care focusing on the soft tissue injuries to his neck and right upper extremity.
Also striking his right hip and lower back against the truck stairs on August 22, 2007 and receiving assessment of these areas through his chiropractor shortly after the workplace accident.
The chiropractor noting he had deep soft tissue bruising of his lower back; that it could take up to a year for it to subside and he could not provide direct treatment in the interim.
Returning to his pre-accident work duties after the workplace accident but receiving accommodation for his ongoing lower back problems with the help of his co-workers and immediate supervisors.
Continuing to see his chiropractor on a regular basis after August 2007 as part of a pre-accident follow regimen associated with other workplace injuries.
The employer's insurance plan coving up to $500 of this care on a yearly basis.
Injuring his right side lower back in the workplace on four or five previous occasions; requiring health care for these injuries but being able to continue with his regular work duties at these times.
How the deep soft tissue bruising of his left side lower back gradually subsided but he continued to experience lower back pain and left-sided sciatica.
These problems becoming worse and requiring him to s seek specific treatment from his chiropractor and accommodated work placement from July 2008 until January 2009.
The accommodated work duties involving in office health and safety training and the freedom to alternate positions, rest and carry out back exercises as required.
Being fully recovered at this point and performing pre-accident work duties without accommodation.
The worker's representative submits that the worker’s case is really quite straight forward and the operating area has not properly understood what transpired after the workplace accident of August 22, 2007. The worker has testified that he recovered from the soft tissue injuries to his neck and right upper extremity but not to the left side lower back.
The chiropractor has verified that he had significant soft tissue bruising of this area; he continued to experience lower back symptoms of a mechanical nature that worsened as of July 22, 2008 and required further treatment and workplace accommodations. More importantly, the chiropractor supports a relationship between the original workplace accident and the further lower back problems in July 2008. For these reasons, the worker's representative asserts that the appeal has merit.
The employer's representative notes that the injuries sustained by the worker in the workplace accident of August 22, 2007 are not in question. However, the relationship between his further lower back problems of July 21, 2008 and the original injury is not clearly established. He submits that there is insufficient evidence of medical treatment between these dates and we have only the worker's word that he required self-accommodation.
Furthermore, it is not clear which side the worker's lower back was injured in the workplace accident August 22, 2007. The chiropractor now reports that it was a left side lower back injury, as does the worker but this is all after the fact. In view of these inconsistencies, a relationship is not established and the employer's representative asserts that the policy criteria for recognizing a recurrence are not met and the worker's appeal should fail.
I note that the employer classified the workplace accident as a major injury in its own internal report completed on August 22, 2007. The chiropractor’ s report of August 21, 2008 also verifies that the worker incurred deep bruising of the left lower back and continued to have residual symptoms even after the bruising subsided. While the employer disputes that the worker had ongoing lower back complaints, it did not bring relevant witnesses to rebut the worker's testimony.
The operating area notes that the worker's prior lower back injuries involved his right side as did the workplace accident of August 22, 2007. As his further lower back problems of July 21, 2008 involved the left side of the lower back, it has concluded that a relationship is not evident. It also had no knowledge of the worker's need for self-accommodation when it made this decision. The question is whether the evidence as a whole supports these conclusions.
I believe that the evidence as a whole supports the worker’s requests under this claim. I accept his testimony about the injury to the lower back involving his left side and not his right side. The chiropractor has also confirmed his prior right-sided lower back injuries, a localized injury to the left side of the lower back on August 22, 2007 and continuing left-sided mechanical lower back problems after this date. Lastly, I have no reason to deem the chiropractor’s medical evidence as invalid.
As such, I conclude that the worker's recurrent left-sided lower back problems of July 21, 2008 are accident-related under this claim. The operating area will provide payment for the worker's associated health care expenses from July 23, 2008.
CONCLUSION
I conclude that:
The worker's recurrent left-sided lower back problems of July 21, 2008 are accident-related under this claim.
The operating area will provide payment for the worker's associated health care expenses from July 23, 2008.
The worker's objection is allowed.
DATED April 8, 2010
L. J. Vaccarello Appeals Resolution Officer Appeals Branch